# United States **Court of Appeals**  **for the Federal Circuit**

______________________ BANNUM, INC., Plaintiff

- Appellant

v.
UNITED STATES AND DISMAS CHARITIES, IN C., Defendants

- Appellees

______________________
2014

- 5085

______________________ Appeal from the United States Court of Federal Claims in No. 1:14

- cv

- 00140

- MCW, Judge Mary Ellen Coster Williams.

------------------------------------------------------------------ BANNUM, INC., P laintiff

- Appellant

v.
UNITED STATES , Defendant

- Appellee

______________________
2014

- 5086

______________________BANNUM , INC

. v. US 2

Appeal from the United States Court of F ederal Claims in No. 1:14

- cv

- 00040

- NBF , Judge Nancy B. Fir estone

.

______________________ Decided: March 12, 2015

______________________ J USTIN H UFFMAN , Camardo Law Firm, P.C., Auburn, NY, argued for plaintiff

- appellant in 2014

- 5085 and 2014

- 5086

. Also represented by J OSEPH A. C AMARDO , J R

.
A NTONIA R AMOS S OARES , Commercial Litigation Branch , Civil Division, United States Department of Justice, Washing ton, DC, argued for defendant -appellee United States in 2014

- 5085 and 2014

- 5086

. Also repr esented by R USSELL J. U PTON , J OYCE F. B RANDA , R OBERT E. K IR SCHMAN , J R ., D ONALD E. K INNER

.
A LEXANDER D. T OMASZC Z UK , Pillsbury Winthrop Shaw Pittman LLP, McLean, VA, argued for defendant -appellee Dismas Charities, Inc

. in 2014

- 5085

. Also represented by A LEXANDER B REWER G INSBERG

.

______________________ Before T ARANTO , C LEVENGER , and C HEN , Circuit Judges.
T ARANTO , Circuit Judge. Bannum, Inc. protests decisions of the Bureau of Pri sons of the United States Department of Justice to award two contracts to other bidders. In two actions brought in the Court of Federal Claims, Bannum complained that the awards w ere improper, alleging a common defect in the terms of the solicitations and, also, problems in the evaluation of competing bids . In each case, the Court of Federal Claims dismissed Bannum’s suit

. Finding that Bannum ’s proposal , by failing to commit Bann um to aB ANNUM , INC

. v. US 3

fixed price, was materially out of compliance with the terms of the solicitation, the court concluded that Ba nnum was not an “ interested party ” entitled to bring its protest under 28 U.S.C. § 1491(b).
We affirm the dismissals of Bannum’s suits, but on a different basis. We conclude that , because Bannum did not adequately pres ent its objection to the solicitations before the awards, Bannum waived its ability to challenge the solicitation s in the Court of Federal Claims. We also conclude that , on appeal , Bannum failed to preserve its separate challenge s to the bid evaluation s. We do not reach the “interested party” ground of the Court of Fede ral Claims’ decisions.
B ACKGROUND In the first of the two separately filed protest actions before us on appeal, Bannum protests the government’s

awar d of a fixed

- price, indefinite

- delivery, requirements

type contract to intervenor Dismas Charities, Inc. , for the operation of a residential reentry cente r for federal o ffenders in Tupelo, Mississippi

. The government pu blished the solicitation, Request for Proposals ( RFP ) No. 200

- 1168

- SE, in February 2012, inviting interested bi dders to submit initial proposals by April 23, 2012. Only Bannum and Dismas su bmitted offers.
Over the next fifteen months
, the government sent notices to the two bidders altering the contract requir ements and requesting updated proposals

. Amendment No. 5, issued i n February 2013, added a requirement that the facility be operated in compliance with the Prison Rape Elimination Act of 2003 (PREA)
, 42 U.S.C. §§ 15601

– 15609. The government asked both bidders to sign the amendment and submit a final proposal revision, including any necessary changes in price.
Whereas Dismas evidently signed the amendment without further ado, Bannum responded with a six

- pageBANNUM , INC

. v. US 4

letter labeled “Final Proposal Revision #3 and AGENCY PROTEST , ” in which it restated its earlier price proposal and noted that those prices “do not, and cannot, reflect any consider ation for the effects of Amendment 5” because of the “enormous amount of information [that] is required prior to pricing this new contract requirement.” 14

- 5085 J.A. 11109. Bannum attached a signed copy of Amen dment No. 5, placing an asterisk next to the term requiring PREA compliance and stating: “Subject to and limited by Bannum’s response to [Final Proposal ] #3

. . . submitted herewith; also, subject to Bannum’s reservation of all rights and protests.” Id. at 11115

– 16. Bannu m repeated its objection f our months later, when the government asked the bidders for final bids that confirmed their pricing after incorporating updated wage rates. On July 19, 2013, the contracting officer evaluated the offers, and on August 26, 2013, the government awarded Dism as the contract.
In September 2013 , after the award, Bannum file d a protest with the Government Accountability Office (GAO), alleging defects in the government’s evaluation of the proposals

. When its GAO protest failed, Bannum filed suit in the Court of Federal Claims on February 19, 2014 , seeking a preliminary injunction to prevent implement ation of the contract. Bannum again challenged the bid evaluation as flawed and added a new allegation that the solicitation itself was “materially defec tive ” becaus e of the PREA

- compliance requirement and the government’s refusal to provide pricing guidance

. 14 -5 085 J.A. 26

. The court denied Bannum’s request for preliminary relief

. Bannum, Inc. v. United States , 115 Fed. Cl. 257, 275 (2014). I n a memorandum opin i on issued several weeks later , the court granted motions (by the government and Dismas) to dismiss the case, concluding that Bannum was not an “interested party” under § 1491(b) because it submitted a bid that was materially out of compliance with the terms of the solicitation. Bannum, Inc. v. UnitedB ANNUM , INC

. v. US 5

States , 115 Fed. Cl. 148, 15 5–5 6 (2014). Accordingly, the court lacked jurisdiction to hear Bannum’s suit. Id. at 156. Bannum’s second action differs from its first only in ways we deem immaterial

. Th e solicitation, RFP No. 200

- 1182

- SE, involves a different place of performance (Flo rence, South Carolina), a different competitor (the Alston Wilkes Society, Inc.), and several minor differences in the scope of work and evaluation criteria

. But the procur ement followed essentially the same path as the Mississi ppi procurement . T he government amended the solici tation to require PREA compliance, and Bannum responded by explaining its inability to price PREA compliance and clarifying that it “reserve[d] all rights to [requests for equitable adjustments], Claims, and Pr otests ,” 14

- 5086 J.A. 10882, though without featuring the word “ protest” as prominently as in its correspondence in the Mississi p pi case , id

. at 10876

. On August 8, 2013, the government evaluated the bids and awarded the contract to Alston Wilkes

. Bannum filed a protest with the GAO on August 20, 2013, asser ting only that the government’s evaluation process was flawed. The GAO denied the protest in Nove mber 2013, and Bannum filed suit in the Court of Federal Claims on January 16, 2014. As in the Mississippi action , Bannum reasserted its challenge to the evaluation process and newly argued that the solicitation itself was materially defective.
Both sid es moved for judgment on the administrative record, and the government moved separately to dismiss for lack of jurisdiction. The court granted the gover nment’s motion to dismiss, concluding that, because Ba nnum submitted a non

- compliant proposal, it lacked the economic interest in the outcome of the award necessary to mount a protest under § 1491(b). Bannum, Inc. v.BANNUM , INC

. v. US 6

United States , No. 14

- CV

- 40, 2014 WL 1373739, at *4

– 5 (Fed. Cl. Apr. 8, 2014)

. Bannum timely appealed both decisions. We have j urisdiction under 28 U.S.C. § 1295(a)(3). We consolidated the cases for oral argument and now decide them toget her. D ISCUSSION 28 U.S.C. § 1491(b) grants the Court of Federal Claims “jurisdiction to render judgment on an action by an interested party objecting to” a solicitation or contract award made by a federal agency. We review the Court of Federal Claims’ legal conclusions d e novo and its factual findings for clear error. Daewoo Eng’g & Const. Co. v. United States , 557 F.3d 1332, 1335 (Fed. Cir. 2009). Where, as here, no material facts are in dispute, w e review the Court of Federal Claims’ determination of its own jurisdict ion without deference. Taylor v. United States , 303 F.3d 1357, 1359 (Fed. Cir. 2002). Because Bannum’s two distinct grounds for protesting the awards

— (a) a defect in the solicitations and (b) d efect s in the bid -evaluation process

— entail different rem edi es and are subject to different legal standards, see COMINT Sys. Corp. v. United States , 700 F.3d 1377, 1382 n.4 (Fed. Cir. 2012), we address them separately.
A A bidder that challenges the terms of a solicitation in the Court of Federal Claims generally m ust demonstrate that it objected to those terms “prior to the close of the bidding process.” Blue & Gold Fleet, L.P. v. United States
, 492 F.3d 1308, 1315 (Fed. Cir. 2007). If it cannot do so, the bidder “waives its ability to raise the same objection af terwards in a § 1491(b) action.” Id. ; see also COMINT
, 700 F.3d at 138 1–8 2.B ANNUM , INC

. v. US 7

It is un dispute d that the government received notice of Bannum’s dissatisfaction with the PREA

- compliance requirement before awards were made

. W e conclude , however, that mere notice of dissatisfaction or objection is insufficient to preserve Bannum’s defective

- solicitation challenge

. The solicitation s at issue and the governing regulations put Bannum on notice of the formal requir ements for filing a “ protest ” that w ould trigger an agency obligation of response and prompt resolution

. Bannum did not compl y with those requirements ; nor did it pursue other available means of formal protest ( e.g. , to the GAO or the Court of Federal Claims ) until after the awards . In the se circumstances, it waived its solicitation challenge s. Our waiver rule implements Congress’s directive in the Administrative Dispute R esolution Act (ADRA) of 1996, P ub

. L. No. 104

- 320 , § 12 , 110 Stat. 3870, 3874 , that courts “ shall give due regard to

. . . the need for exped itious resolution ” of protest claims . 28 U.S.C. § 1491(b)(3) ;
see Blue & Gold
, 492 F.3d at 1313

. A waiver rule impl ements this statutory mandate by reducing the need for the “inefficient and costly” process of agency rebidding “a fter offerors and the agency ha[ve] expended consider able time and effort submitting or evaluating proposals in response to a defective solicitation.” Blue & Gold , 492 F.3d at 13 14 (internal quotation marks and citation omitted)

. In this context, clarity is not just readily achievable but important. Requiring that the prescribed formal routes for protest be followed (to avoid waiver) reduces uncertainty about whether the issue is joined and must be resolved, and thereby helps prev ent both the wasted and duplicative expenses ( of all bidders and the government) and the delayed implementation of the contract that would likely follow from laxer standards of timely presentation of solicitation challenges.
In COMINT , we suggested that filing a formal, age ncy

- level protest before the award would likely preserve a protestor’s post

- award challenge to a solicitation , 700 F.3dBANNUM , INC

. v. US 8

at 1382 , as might a pre

- award protest filed with the GAO, id. at 1383 (citing 4 C.F.R § 21.2 (“Protes ts based upon alleged improprieties in a solicitation

. . . shall be filed prior to bid opening or the time set for receipt of initial proposals.”) (emphasis added)). T he rules applicable to both GAO protests and agency

- level protests make clear why that should be so . T he filing of a protest grants protestors certain remedies (a stay of award) and ensures that the government will resolve the matter in a timely fashion.
In the GAO , the act of filing a protes t generally tri ggers an automatic stay of any award of the contract, 31 U.S.C. § 3553 (c)(1) , and requires the GAO to issue a decision within 100 days, § 3554(a)(1 ); see also § 355 4 (a)(2) (requiring the Comptroller General to provi ded expedited review in ce rtain cases). The Justice D epartment’s acquisition regulations, promulgated in 1998 after an executive order directed agency heads to “provide for inexpensive, informal, procedurally simple, and exp editious resolution of protests,” Exec. Order No. 12979, 60 Fed. Reg. 55171, 55171 (Oct. 25, 1995), provide similar guarantees. See 63 Fed. Reg. 16118, 16133 (Apr. 2, 1998). B idders that file a formal protest are entitled to a sche duling conference within five days of filing, an automatic stay of the award pending disposition of the dispute, and a guarantee of prompt resolution of the protest. See 48 C.F. R. § 2852.233

- 70(e), (i), (j). Bannum does not dispute th e availability of tho se
means for presenting and ensuring responses to solicit ation objections before an award i s made , and at least two of the means

— a GAO protest and an agency

- level pr otest

— were explicitly set forth in the solicitations at issue. Nor does Bannum contend that its objections amounted to a formal protest

. Oral Argument at 11:45

– 12: 05, Ba nnum, Inc. v. United States , 2014

- 5085,

- 5086 (“Bannum did not submit a formal protest but it did

. . . multiple times ask for guidance .”). Bannum also has not cha l-B ANNUM , INC

. v. US 9

lenged any of the procedures made available to it as

un duly burdensome or impractical, or asserted that there

was good cause for excusing its failure to comply with them. See COMINT , 700 F.3d at 1382 (failure to mount a pre

- award protest may be excusable where doing so “ is not practicable ”). Having failed to follow any of the various prot est pr ocedures available to bidders for swiftly resolving obje ctions to the terms of the solicitation, Bannum cannot raise the same challenge in the Court of Federal Claims now that an award has been made. Bannum waived the solicitation challenge by not p roperly raising it before the close of bidding

. See Blue & Gold , 492 F.3d at 1314. We therefore need not address whether, regarding its solicit ation challenge, Bannum is an “interested party” under our case law, which itself has taken into account , in certain circumstances, whether a party has timely presented and diligently press ed its protest

. See , e.g. , CGI v. United States , No. 2014

- 5143 (Fed. Cir. Mar. 10, 2015).
B Our conclusion that Bannum waived its challenge to the terms of the solicitation does not dispose of the sep arate question of whether, once we accept the PREA

compliance requirement as beyond dispute , we should conclude that Bannum is nevertheless an “interested party” under § 1491(b) with standing to protest the alle gedly defective eva luation process es

. As the government agreed at oral argument, at least as a general matter, a bidder cannot be expected to challenge an agency’s eval uation of bids, in contrast to the terms of solicitation, until the evaluation occurs. See Oral Argument at 29:14

– 29:43. We need not address Bannum’s bid

- evaluation challenge s , however, because we conclude that Bannum has failed to preserve those challenges on appeal.
In its complaints, Bannum ple ade d grounds for pr otest that f a ll into two categories : a defe ct in the solicit a-BANNUM , INC

. v. US 10

tions; and defects in the bid -evaluation processes . The Court o f Federal Claims in both cases ruled on Bannum’s protest without treating the two types of grounds for protest separately. It concluded in both cases that , because Bannum submitted a materially non

- compliant bid, its offer could not form the basis for a proper award and
, consequently , that Bannum lacked standing to challenge any aspect of the procurement process

. On appeal, however, Bannum rests its argument for standing exclusively on its challenge to the solicitation, contending that, if it were to succeed in that challenge , “the [government] would be obligated to rebid the co ntract, and Bannum would have the opportunity to co mpete in the resolicitation.” 14

- 5085 Appell ant Opening Br. 7 ; 14

- 5086 Appellant Opening Br. 10 (identical language );

s ee also 14

- 5085 Appellant Opening Br. 6 , 9 (Bannum seeks “ re solicitation of the contract”) ; 14

- 5086 Appellant Opening Br. 11, 12

. Bannum has not argue d to us that the denial of standing must be reversed , in any event, as to its defective

- evaluation challenge s , which it did not meaningfully mention in its briefs on appeal —either in its opening brief s or, when responding to the government’s waiver argument , in its reply brief s

. B annum has not

co ntend ed that it has standing independent of th e resoli citation remedy it seeks or that resolicitation would be the result of a successful challenge to the evaluation proces ses

. It has focused entirely on the solicitation challenge and has not assert ed that, even if it cannot press that challenge, it nevertheless is entitled to reversal of the denial of standing to press its evaluation challenge s. “An issue that falls within the scope of the judgment appealed from but is not raised by the appellant in its opening brief on appeal” may properly be deemed waived. Engel Indus., Inc. v. Lockformer Co. , 166 F.3 d 1379, 1383 (Fed. Cir. 1999); see Becton Dickinson & Co. v. C.R. Bard, Inc. , 922 F.2d 792, 800 (Fed. Cir. 1990)

. We see no reason to depart from that practice here.B ANNUM , INC

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AFFIRMED